J.V. Gupta, J. - (1.) This appeal is directed against the order of the Additional District Judge, Hissar, dated March 27, 1986, where by the judgment and decree of the trial Court were set aside and the case was remanded to the trial Court after allowing amendment of the plaint and the application for additional evidence filed by the plaintiff.
(2.) The plaintiff filed the suit for the grant of the mandatory injunction and declaration to the effect that he was the owner in possession of the property, in dispute, and, in the alternative, for possession. The plea taken by the defendant was that her husband Hajari was the exclusive owner in possession of the suit property and in any case, he was its exclusive owner in possession by adverse possession. Ultimately, the trial Court dismissed the plaintiff's suit vide judgment dated Dec. 16, 1981, on the ground that the plaintiff had failed to prove himself to be its owner whereas the defendant was found to have become its owner by adverse possession. In the appeal filed on behalf of the plaintiff, he moved two applications, one for allowing the additional evidence under Order 41, Rule 27 , Code of Civil Procedure and the other for allowing amendment of the plaint, Both the applications were contested on behalf of the defendant. However, the learned Additional District judge found that the application for the production of the additwenal evidence will have to be allowed as it will facilitate the Court to arrive at a just conclusion and moreover her these documents were not previously in the knowledge of the plaintiff appellant and those documents were from Court record. and there was no chance of forging them. Thus the prayer for production of the additional evidence was allowed on payment of Rs. 150.00 as costs. As regards the application for amendment of the plaint, the learned Additional District Judge came to the conclusion that a strong case had been made out for not taking the pleas, sought to be taken, earlier, and that the plaintiff had given cogent reasons for the same. It was also found that the proposed amendment was not likely to change the nature of the suit, nor it was likely to introduce a new case. It was simply for Riving better particulars to determine the real controversy between the parties. With these findings, the application for amendment of the plaint was also allowed on payment of Rs. 200.00 as costs. Dissatisfied with the same, the defendant has filed this appeal in this Court.
(3.) The learned counsel for the appellant contended that the application for amendment of the plaint was filed after about ten years of the filing of the suit and that too at the appellate stage. According to the learned counsel, the amendment sought for and allowed will change the entire nature of the suit and, therefore, it could not be allowed by the Court below Besides, no strong case was made out by the plaintiff to allow the amendment sought for at the appellate stage. In support of the contention, the learned counsel relied upon Zile Singh Vs. Smt Darkan, 1984 Punjab Law Journal 346 ; Md Ishag Vs. Md. lqbal Md. Ali & Co., A.I.R. 1978 Supreme Court 798 ; and Hans Raj Vs. Savitri Devi, 1986 (1) Current Law Journal (C,&Cr.) 641 . It was further contended that by way of the amendment, the plaintiff wanted to introduce new facts, which were never pleaded by him earlier and in case the plaintiff is allowed to amend the plaint, there may be no end to the litigation. All the facts were known to the plaintiff earlier as well. As regards the permission to adduce additional evidence, the learned counsel contended that no case was made out for the same as contemplated under Order 41, Rule 27 , Code of Civil Procedure and, therefore, the additional evidence has been allowed illegally. In support of this contention, the learned counsel relied upon Harjit Singh Vs. Smt. Surjit Kaur, 1977 Rent Law Reporter 636 .;